Newly Public FISC Opinion is The Best Evidence For Why Congress Must End Section 702

by Aaron Mackey
Electronic Frontier Foundation
Reprinted under Creative Commons Attribution License

A surveillance court order unsealed last week that details massive violations of Americans' privacy by the FBI underscores why Congress must end or radically change the unconstitutional spying program enabled by Section 702 of the Foreign Intelligence Surveillance Act (FISA).

The opinion recounts how for years the FBI illegally accessed a database containing communications obtained under Section 702 and other FISA authorities more than 278,000 times, including searching for communications of people arrested at protests of police violence and people who donated to a congressional candidate. Section 702 authorizes the surveillance of communications between people overseas. But when a person on U.S. soil is in contact with one of these surveillance targets, that leaves their side of the exchange sitting in a database and vulnerable to these warrantless FBI searches. As the opinion says, "Notwithstanding this foreign directed targeting, the extent to which Section 702 acquisitions involve U.S. persons should be understood to be substantial in the aggregate."

The pervasiveness of the FBI's failure to comply with even the most modest reforms designed to limit the agency's surveillance powers reveals two problems that Congress must address as it considers the Administration's request to reauthorize Section 702.

First, the FBI is incapable of policing itself when it comes to trawling through the communications of Americans without a warrant. "There is a point at which it would be untenable to base findings of sufficiency untenable on long promised, but still unrealized, improvements in how FBI queries Section 702 information," the court wrote. That point is now. The FBI simply cannot help but violate the law.

Second, the Foreign Intelligence Surveillance Court (FISC) is incapable of protecting Americans from the FBI's unconstitutional searches of their communications. Since passage of Section 702 in 2008, Executive Branch leaders have argued that judicial oversight would ensure that the FBI and other spying agencies would not illegally intrude on people's constitutional rights. That has never been true. Yet despite a series of well-documented violations by the FBI, NSA, and CIA, the FISC has consistently approved and reapproved the agencies' ability to use Section 702. The newly released opinion is just the most recent, and perhaps most egregious, example of a judicial rubber stamp.

Congress can fix both problems by prohibiting the FBI from using Section 702 to engage in "backdoor searches." Ending this practice will protect the constitutional rights of Americans to be free from warrantless surveillance and provide meaningful oversight of the FBI's lawless domestic surveillance program. At minimum, the opinion reveals how badly Congress must reform Section 702, including by implementing better transparency measures to enable timely disclosures of agencies' misuse of the law and a meaningful way for victims to challenge the government's illegal surveillance.

Secret court kicks oversight can down the road

The FBI's penchant for violating the Fourth Amendment and other limits on when it can query Americans' communications obtained under Section 702 and other parts of FISA is well known. Since at least 2015, the FBI has consistently failed to comply with basic limits to prevent its agents from accessing people's communications without a warrant.

Witnessing this well-documented pattern of lawlessness, the federal court charged with ensuring FISA surveillance is lawful has essentially given the FBI unlimited mulligans for all of its unconstitutional acts.

After recounting a series of disturbing queries that targeted protesters, people involved in purely criminal activity, and those who had donated to a political campaign, the court recognized that "compliance problems with the FBI's querying of Section 702 information have proven to be persistent and widespread." Although the court suggested that further incidents might prompt limiting who within the FBI could access information obtained under Section 702, it imposed no other restrictions on the FBI besides those proposed by the agency itself.

The court wrote that it was "encouraged" by the FBI's woefully inadequate changes to how it queries data, new practices and training, and greater record-keeping and internal audits. And the court once more approved the FBI's ability to search through Americans' communications swept up by Section 702.

The FISC's failure to impose any significant restrictions on the FBI despite its pattern of violating Section 702 and the Constitution is damning. It shows that the FISC appears unwilling or unable to protect us from the FBI's illegal surveillance, putting to lie the idea that the judiciary can impose real checks on the Executive Branch's mass surveillance programs.

Congress must recognize the opinion as a failure of the judiciary's ability to protect people's privacy rights. And it should not continue to wait for the FISC to take up that role. Instead, Congress must step up and end this unconstitutional surveillance by refusing to renew Section 702 without critical reforms.

Delayed disclosures hamper basic understanding, oversight

The opinion is also a great example of how the Executive Branch can delay disclosure of its illegal acts and obfuscate basic public understanding of its Section 702 surveillance powers. That ultimately benefits the government, as lawmakers and the public struggle to understand basic details about spying at the same time Congress considers reforming FISA.

For example, for all the information disclosed in the FISC's opinion, we still do not know how many times the FBI queried Section 702 using search terms that identify Americans. The opinion describes the FBI querying a database of FISA material that appears to come from Section 702 and other parts of FISA that authorize other forms of surveillance. It thus appears that the court could not say—likely because the government never did—what portion of those queries were for data obtained without a FISA warrant under Section 702. The opinion references a complicated web of FBI databases and recordkeeping systems. In instance, users were directed to document queries on a "separate SharePoint site," because the system itself could not support that feature. Unsurprisingly, there was a "systemic compliance issue involving the failure" to make this documentation.

The inherent secrecy the government employs here means that neither the court nor the public have answers to basic questions like how many times the FBI queried Section 702 information improperly in a given period. And as the back-and-forth documented in the opinion recognizes, the government will often supplement its initial issues after finding other problems. That slow trickle of detail means that no one outside the Executive Branch has a clear picture of Section 702 and any abuse by federal agencies.

Another problem is the time-warp. The FISC issued its opinion recounting the FBI's abuses on April 21, 2022. It took more than a year for the government to declassify and release the opinion, coming out just as Congress is considering whether to renew Section 702. So although the FISC, Executive Branch, and likely some members of Congress have known about the opinion for some time, the American public is just learning about this now.

That sort of delay between when major misuses of the FBI's mass surveillance are discovered and when they are made public is anathema to basic democratic governance. EFF and ACLU have worked for years to make FISC opinions public, via FOIA suits like the ACLU filed earlier this year seeking the disclosure of Section 702 FISC opinions. But that litigation takes time and a lot of resources. The public cannot understand, much less advocate against, the government's mass surveillance programs in these circumstances.

Greater transparency and more timely disclosures of the government's mass surveillance programs are sorely needed. At the same time, Congress does not need any more reports or declassified opinions to see what's really happening here: routine misuse of Section 702 to violate people's Fourth Amendment rights. Congress can and should put a stop to this.